Download as PDF

Chapter 13

Delegating law-making powers to the executive

Part 3

Who will hold the power to make delegated legislation?

The person authorised to make delegated legislation must have an appropriate level of expertise, and hold an appropriate office having regard to the importance of the issues and the nature of any safeguards that are in place.

There are no absolute rules as to who should be authorised to make delegated legislation. Traditionally, delegated legislation is made by the Governor-General on the advice of Government Ministers, or is made by the relevant portfolio Minister(s). Key factors to take into account are the expertise required of the person making the delegated legislation, the importance of the issues in question, and what safeguards are in place (for example, publication, disallowance, Cabinet scrutiny or drafting by the PCO). The following is an indication of when a certain office holder might be the appropriate person to exercise a particular power.

Governor-General in Council: Will be appropriate when the potential exists to significantly affect the population, a large number of people, or human rights. The Governor-General will also be appropriate when delegated legislation creates criminal sanctions (rarely done), amends Acts (very rarely), brings primary legislation into force, or deals with non-technical matters. By convention, the Governor-General will act on the advice of the Executive Council (ordinarily given after Cabinet decisions that confirm or alter decisions of Cabinet committee), and sometimes is expressed to be on the recommendation of one or more Ministers or after compliance with a statutory consultation requirement.

Government Ministers: Will be appropriate where some law making is appropriately entrusted to the relevant portfolio Minister(s) acting (in exercising the power) independently from Cabinet colleagues. There is considerable overlap between those powers that a Minister and the Governor-General might appropriately hold.

Public service chief executives: Will be appropriate where the matter is of minor technical detail, with little impact on the rights of individuals (such as setting the format of prescribed forms).

Independent statutory body or officers: Will be appropriate where the subject matter is highly specialised or technical, where there will be less impact generally on individual rights, and where adequate safeguards are in place. This delegation choice is to empower, as a delegate, a law-maker legally independent of Ministers. Specialist or technical participation can also be achieved by preconditions (such as recommendations or consultation) before making delegated legislation.

Local government/local authorities: Will be appropriate where the subject matter will have a localised impact that requires in-depth knowledge of the particular region, or local government accountability is needed or desirable.

Occupational and professional groups: Will be appropriate if the subject matter will only affect a particular profession or occupation, and if adequate safeguards are in place.

In some of those cases it may be preferable to use primary legislation to directly empower a party to do something (“The Registrar may prescribe the forms …”), rather than attempt to say that regulations may say who may prescribe the forms (if it is obvious that the person will be the Registrar).